JUDGMENT
P.N. Mookerjee, J.
1. This Second Appeal is directed against an appellate decree of ejectment from a shop-room in the ground-floor of a certain building at Strand Bank Road. The defendant was a monthly tenant under the plaintiff in respect of the said shop room at a rental of Rs. 130/3/6 per month. The trial Court dismissed the suit but, on appeal, it has been decreed. Hence this Second Appeal by the unsuccessful defendant.
2. The property originally belonged to the plaintiff’s brother Amulya Kanjan Dey, under whom the defendant occupied the suit premises as the tenant. The dispute between the parties, namely, the plaintiff and the defendant and between Amulya and) the defendant, started a long time back and there were various proceedings, but, for my present purpose, it is sufficient to refer to the following facts:
3. On 12-8-1949 Amulya sold the suit premises to the plaintiff. The defendant was then depositing rents with the Bent Controller in the name of Amulya because of disputes with him. On 18-3-1950 Amulya wrote to the defendant intimating the transfer and asking him to pay damages thereafter to the vendee, the present plaintiff. A letter of confirmation also followed from the plaintiff herself and it was duly received by the defendant. The latter, however, continued to deposit rent with the Rent Controller in Amulya’s name.
4. On 16-9-1950 the plaintiff instituted Suit No. 6592 of 1950 in the Court of Small Causes, Calcutta, for recovery of arrears of rent from Chaitra 1356 B. S. to Aswin 1357 B. S. The suit was contested but, eventually, it was decreed on 11-2-1951 and the defendant paid the decretal amount to the plaintiff. Thereafter, the defendant continued to send rents to the plaintiff by postal money order and the same were duly received by the plaintiff.
5. On 2-1-1952, corresponding to 17th Pous 1358 B. S., the plaintiff served upon the defendant a notice to quit, asking him to quit and vacate the suit premises on the expiry of Magh 1358 B. S. and upon his failure to do so, she brought the present suit on 19-2-1952, corresponding to 6th Fal-goon 1358 B. S. It appears, however, that, even subsequent to the institution of this suit, she received rents from the defendant for Falgoon 1358 B. S. to Chaitra 1359 B. S. by money orders.
6. The suit for ejectment was instituted on two grounds under the Rent Control Law, namely, (i) plaintiff’s reasonable requirement of the suit premises for her own use and occupation and (ii) default on the part of the defendant in the payment of rent. The first ground has been concurrently negatived by both the courts below and it has not been pressed here on behalf of the plaintiff-respondent. On the second! ground, the courts below have differed in their opinion, the trial court holding that the defendant was not a defaulter, so as to be hit by the proviso to Section 14(3) of the Act, the lower Appellate Court holding the contrary. The trial Court, however, felt no necessity to pass any order under Section 14(1), as it was of the opinion that the suit would fail on the broader ground of waiver of the notice to quit. On this question of waiver also, the lower Appellate Court has reversed the trial court’s decision.
7. The points, therefore, that require consideration are (i) whether the proviso to Section 14(3), Rent Control Act of 1950 applies to the present case and (ii) whether there was waiver of the relevant notice to quit. In my opinion, the first or these two points should be answered in the affirmative and the second in the negative, the result being that the decree for ejectment, passed by the learned Special Bench would be affirmed.
8. The defaults found, — and that finding Is unassailable on the materials before me, — are for the period Chaitra 1356 B. S. to Kartick 1367 B. S. In view of the two letters, dated 18-3-1950 and 19-3-1950 respectively, from Amulya and the present plaintiff to the defendant, there is little room for doubt that the defendant was fully aware that the plaintiff had become his landlady and his subsequent deposits of rent With the Rent Controller in Amulya’s name can hardly be justified or accepted as valid deposit. The receipt of these letters is not denied before me by Mr. Gupta nor is there any dispute or disagreement as to their contents, but Mr. Gupta drew my attention to the use therein of the word ‘damages’ in place Of ‘rent’ and he contended that that showed that the plaintiff was not accepting the position of the landlord (landlady) and, accordingly, the defendant was entitled to proceed on the old basis and treat Amulya as the (his) landlord for purposes of deposit under the Rent Control Law. I do not think that this contention is Justified in the facts and circumstances of this case. It is at least clear that the defendant was duly made aware of the transfer of ownership and, for that, both the transferor and the transferee were asking him to make payment for his occupation of the premises to the transferee. In these circumstances, there was not the slightest justification for his depositing the money — which, according to him and also under the prevailing rent control law, was “rent” — with the Rent Controller in the name of the [transferor, Amulya. This is also confirmed by the subsequent decree for rent in the ‘S.C.C. Suit No. 6592 of 1950′ where substantially this very question was raised and decided. Whether that decision effectively binds the parties or not on this point, I have no doubt in my mind that, even apart from that, the legal position is the same. I must, therefore, hold that the defendant was a defaulter from Chaitra 1356 B. S. to Kar-tick 1357 B. S,
The learned trial Judge also, who eventually dismissed the plaintiff’s suit, did not take a different view on this point but what he held’ was that of these defaults, only the defaults of Bhadra, As-win and Kartick, 1357 B. S. were within the relevant “period of eighteen months” under the statutory proviso to Section 14(3), Rent Control Act as, in his opinion, this “period of eighteen months” must be a period, immediately preceding the institution of the suit, and, as he found further that the requisite, notice to quit had been waived, he dismissed the plaintiff’s suit.
If I had been able to agree with the learned trial Judge in his above view of the “period of 18 months”. I would have affirmed his conclusion in favour of the defence on the question of the requisite two months’ default on three occasions, as within the period of eighteen months backwards from the Institution of the suit, the relevant defaults would, in no view, be of more than four months, viz., Sravan to Kartick, 1357 B. S., which would quite obviously fall short of the requisite statutory minimum under the relevant proviso. I am, however, of a different opinion on the basic question of the mode of calculation of the “period of eighteen months”.
The statutory language does not seem to me to justify the limitation of this period to a period, Immediately preceding the institution of the suit. The period must, no doubt, be subsequent to the coming into force of the Rent Control Act of 1950, as the defaults must obviously be, on the express language of the proviso itself, defaults under Section 12(1)(i) which, referring, as it does, to a valid deposit under Section 19 as a means of avoiding default under the section (Section 12(1)(i) ), must be taken to contemplate only post-Act defaults thus restricting the relevant eighteen months’ period to post-Act — that is, post the 1950 Act, — period.
It would also certainly be a pre-suit period (vide ‘Amal Krishna Basu v. Chandi Charan’, ). But I do not find any the least justification, upon the language of the Act, to limit this period further to a period, immediately preceding the institution of the suit, and, in my opinion, the “period of eighteen months”, mentioned in the proviso to Section 14(3), Rent Control Act of 1950, would be any period between the commencement of the Act and the institution of the suit, the pre-Act period being excluded on reasons, given above, and the post-suit period on reasons, given in the Bench decision cited, namely, , and only defaults within the period, so calculated, would be relevant for consideration under the above statutory proviso. In the above view of the matter, I hold, in agreement of the learned Special Bench and differing from the learned Trial Judge, that the defendant was guilty of the requisite defaults under the said proviso and was thus incompetent to resist eviction on a claim of protection under Section 14, of the Act.
I need only add that I am not concerned here with the question whether defaults upto the date of institution of the suit or upto the date of the notice to quit or termination of the contractual tenancy only would be relevant for purposes of the proviso to Section 14(3). About the two terminii of the “period of eighteen months” within the limits mentioned above, I have no doubt as to first which, as already said, will be the commencement of the 1950 Act, but, as to the other, in the light of the question I have posed in the preceding lines the matter is not so clear and, as it does not require decision in this case, I prefer to leave it unanswered for the present.
9. The next question is whether the notice to quit was waived. The notice was admittedly given in Pous 1358 B. S., asking the defendant to quit on the expiry of Magh 1358 B. S., and the present suit was instituted in Falgoon, 1358 B. S., There is no dispute, however, that the plaintiff respondent received by money order monies, sent as “rent” by the appellant defendant, from Falgoon, 1358 B.S. onwards upto Chaitra, 1359 B.S., that is, for periods, subsequent to the notice and subsequent also to the institution of this ejectment suit.
The question is whether this has resulted In waiver of the notice to quit. There is nothing in the present record to show that the plaintiff received the said monies as rents strictly so called, which would operate to continue the old tenancy. On the other hand, there is sufficient denial on her part on this point and circumstances support the same. In this state of things, the receipt of the monies in question may well constitute acceptance of “rents” under the Rent Control Law in respect of the statutory tenancy under that law. At any rate, it is by itself insufficient to lead to the necessary inference of the requisite intention on the plaintiff’s part to continue the old tenancy and thus constitute waiver of the notice to quit and, in the light of the decisions of this court of which reference may be made ‘inter alia’ to ‘Panchanan Ghose v. Haridas Banerjee’, and Mahadeo Prasad v. Sm. Sulekha Sarkar the essential requisite. — the necessary ‘consensus ad idem’ as it is often called –would be wanting and a finding of waiver of the notice to quit, the onus to prove which Is undoub-tedly on the defendant, would not be justified.
If Section 21 of the 1950 Act had remained in its old form as under the 1948 Act, there would have been absolutely no difficulty in the matter and no question of waiver could have at all arisen, but, even the particular change, effected by the 1950 Act in that section, does not, in my opinion, affect the position in the present case. The only effect of the old Section 21 was that, if otherwise there was a waiver of the notice to quit under the general law in the circumstances of a particular case By reason of acceptance of ‘rent’ by money order or by withdrawal of deposit from the Rent Controller, Section 21 would have still protected the landlord by excluding any inference of waiver.
That special protection has now been limited to withdrawal of deposit from the Rent Controller. The protection, however, would be necessary only if the landlord requires it, that is, where there would) otherwise be waiver. The withdrawal of the special statutory protection in the case of rent money orders is, therefore, of no consequence where there is no waiver at all. This, indeed, is conceded by Mr. Gupta and it is also amply supported by the decisions, where even direct payment and acceptance of the rent money was held not to constitute waiver necessarily.
I would, therefore, proceed to consider Mr. Gupta’s limited but specific argument on this point. Mr. Gupta has not questioned the various English decisions which were relied upon in the cases of this Court, cited above, but he contends that those English decisions were really cases of forfeiture and not of termination of tenancy by notice to quit and he has, in the first place, sought to draw a distinction on this question of waiver, in cases governed by the rent control law, between forfeiture and notice to quit.
An examination of the relevant English cases, however, would show that, even the leading authority on this point, viz., ‘Davies v. Bristow’, (1920) 3 KB 428 (D), was a case of notice to quit (Vide p. 438). I do not, therefore, accept Mr. Gupta’s above argument on the point. As I pointed out in my decision, reported in ‘Usharanl Debi v. Charusila Dasi’, 59 Cal WN 572 (E), there is no distinction on this point between the English and the Indian law and I would now add that there is no distinction also, so far as this point is concerned, between cases of forfeiture and cases of determination of the tenancy by notice to quit. I would only point out further that, in the case just cited, namely, 59 Cal WN 572 (E), I found waiver on the actual evidence before the court and, therefore, the ultimate conclusion there was in favour of the tenant.
10. Mr. Gupta further argued that, whatever the position, so long as the tenant retained protection of the Rent Control Law, acceptance of rent after he had lost such protection would clearly mean waiver of the notice to quit. I do not think, however, that, ordinarily, until determination by the court and passing of a decree for ejectment, obviously terminating the statutory tenancy, the landlord may only act at his peril on the footing that the tenant has lost protection under the rent control law and, in such circumstances, the acceptance of the rent money by the landlord, even when the tenant may ultimately be found to have lost that protection, should not necessarily amount to waiver, particularly when the landlord was not, receiving the same as ‘rent’ of a continuing tenancy.
To hold otherwise would be placing an undue risk upon the landlord, for which I find little justification. The determination of the question whether the tenant has lost the protection under the rent control law Is often beset with extreme difficulties and. to require the landlord to decide this question, before he accepts the rent money, on pain of waiver of the notice to quit, would be placing too great a burden upon him, for which law, as it stands at present, contains, in my opinion, no sufficient warrant. The decision, since reported in ‘Kartlck Chandra Das v. Gangadutt Murarka’ 59 Cal WN 827 (P), to which reference was made by Mr. Gupta, does not militate against this view. I do not, therefore, accept Mr. Gupta’s submission.
11. In the result, then, this appeal must fall, but, in the circumstances of this case, I would give the tenant defendant time till the end of November, 1955 to vacate the suit premises.
12. Subject as above, this appeal is dismissed, but there will be no order as to costs in this appeal. Leave to appeal under Clause 15, Letters Patent, is prayed for and it is granted.
